Case: 22-5409 Document: 41-1 Filed: 05/18/2023 Page: 1 (1 of 15)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
Deborah S. Hunt POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000
Clerk CINCINNATI, OHIO 45202-3988 www.ca6.uscourts.gov

Filed: May 18, 2023

Mr. Andrew Cronin Clarke

Andrew C. Clarke
One Commerce Square
Seventeenth Floor
Memphis, TN 38103

Mr. Robin R. Flores

4110-A Brainerd Road
Chattanooga, TN 37411

Mr. Matthew D. Tidwell

Mr. William Gerald Tidwell Jr.
Tidwell and Associates
1810 McCallie Avenue
Chattanooga, TN 37404

Re: Case No. 22-5409, Bailey White v. Hamilton Cnty Gov, et al

Originating Case No. : 1:19-cv-00304

Dear Counsel,

The Court issued the enclosed opinion today in this case.

Enclosed are the court’s unpublished opinion and judgment, entered in conformity with Rule
36, Federal Rules of Appellate Procedure.

Sincerely yours,

s/Cathryn Lovely
Opinions Deputy

cc: Ms. LeAnna Wilson

Enclosures

Mandate to issue
 Case: 22-5409 Document: 41-2 Filed: 05/18/2023 Page: 1 (2 of 15)

NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0231n.06

No. 22-5409

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BAILEY WHITE, as Administrator of the Estate of )

FILED
) May 18, 2023
Shandle Marie Riley, deceased,
) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
ON APPEAL FROM THE
)
v. UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
JACOB GOFORTH, in his individual and official ) DISTRICT OF TENNESSEE
capacity as a Deputy Sheriff of Hamilton County )
)
Government, OPINION
)
)
Defendant-Appellant.
)

Before: McKEAGUE, THAPAR, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. On a winter night in 2019, Hamilton County Sheriff’s Deputy

Jacob Goforth received an unusual phone call from fellow on-duty officer, Daniel Wilkey. Wilkey,

whom Goforth knew to be a preacher outside of work, asked Goforth to witness a baptism at a

nearby lake. Although surprised, Goforth agreed, assuming that Wilkey was baptizing someone

he knew from church. He wasn’t. Unbeknownst to Goforth, Wilkey had stopped Shandle Riley

earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed

to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed

Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a

consensual, if improper, situation. Wilkey proceeded to baptize Riley, while Goforth filmed on

his cellphone. Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.

Riley sued Goforth under 42 U.S.C. § 1983, claiming that he was liable for failing to intervene in
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No. 22-5409, White v. Goforth

Wilkey’s violation of her First and Fourth Amendment rights. The district court denied Goforth

qualified immunity as to those claims. We REVERSE.

I.

In the evening hours of February 6, 2019, Hamilton County Sheriff’s Deputy Jacob Goforth

received a call in his squad car from fellow officer, Daniel Wilkey.1 Wilkey, whom Goforth knew

to be a preacher outside of work, asked Goforth to drive to a boat launch on Soddy Lake to witness

a baptism. Goforth was, understandably, taken aback: “[W]hen [Wilkey] first said it, it didn’t

really sink in what he’d just said, so I asked him to clarify, and he told me again.” Goforth assumed

that Wilkey was planning to baptize someone he knew from his church. Arriving at the boat

launch, Goforth saw Wilkey’s parked patrol car, which was blocked in by a civilian car. He saw

Wilkey and a woman “talking, [and] joking around.” Two towels were “sitting on the hood” of

one of the cars. Goforth asked Wilkey, “Hey, what exactly are you doing here? Because it looks

like you’re, you know, about to baptize this woman.” Wilkey confirmed that was the plan. Goforth

made a comment about how cold it was and said something like: “Are you sure about this?” or

“I don’t know about this.”

Wilkey introduced Goforth to the woman, Shandle Riley,2 and told Goforth that Riley

“wanted to be baptized.” In getting ready to enter the lake, Wilkey told Riley that he was going to

take his uniform off but asked Riley to keep her clothes on. Wilkey removed all his clothing except

1
The evening’s events are largely captured by dashcam video from Wilkey’s patrol car and the
video taken by Goforth on his cellphone, although audio is limited. We recite the facts in the light
most favorable to Riley, except where contradicted by the videos. See Hooper v. Plummer, 887
F.3d 744, 757 (6th Cir. 2018); Scott v. Harris, 550 U.S. 372, 378 (2007).
2
Riley passed away on April 13, 2022. The district court substituted Bailey White, the
administrator of Riley’s estate, as the real party in interest. For ease, the opinion continues to refer
to plaintiff/appellee as Riley.
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No. 22-5409, White v. Goforth

his compression shorts and t-shirt. Goforth learned, “right before [Wilkey] went to baptize” Riley,

that Wilkey had issued her a citation earlier that night. Wilkey and Riley entered the water, and

Wilkey baptized Riley, holding one hand on her back and the other on her front, and quickly

submerging her in the lake. Goforth filmed the incident on his cellphone.

In his deposition, Goforth was asked why he didn’t report Wilkey or stop him from

baptizing Riley. Goforth offered two reasons. First, “Riley seemed like she wanted this to take

place. She was very vocal about it.” Goforth “thought she was a willing participant and wanted

to be baptize[d] by Wilkey, who [he] underst[ood] [was] a preacher outside of work.” Second,

“[w]hile [Goforth] found it unusual what he was doing, the setting and the time, and especially the

season that he was doing it in, [he] didn’t find it to be wrong per se.” When asked why he filmed

the incident, Goforth explained, “I filmed it because I wanted to ensure that Ms. Riley wasn’t going

to allege some kind of sexual misconduct. Because obviously I know what a baptism entails.

I understand where hands are going to be, things like that. So I decided I’m going to film this in

case she tries to say that, you know, X, Y, and Z happened.”

Unbeknownst to Goforth, the following events had transpired earlier in the evening. After

leaving work, Riley had driven to her ex-mother-in-law’s house, stopping first at a gas station.

When she left the gas station, Wilkey followed her in his patrol car. He stopped Riley in the

driveway of her ex-mother-in-law’s house. Wilkey approached the vehicle and asked what Riley

had in the car. She admitted that “[t]here was a marijuana roach in [her] cigarette pack.” Wilkey

had Riley exit the car. He then searched Riley and her car, finding only the marijuana mentioned

by Riley.

Somehow, Wilkey and Riley began discussing religion. Riley testified, “I don’t know how,

when and where, he asked me if I’d been baptized.” Wilkey told Riley that if she “got baptized

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No. 22-5409, White v. Goforth

he’d give [her] a citation and [she] could go about [her] business, because God was talking to him.”

He told Riley that if she “let him baptize [her], he wouldn’t take [her] to jail.” He also told her

that he would go to court and speak on her behalf if she agreed to be baptized. Riley testified that

she “would much rather get baptized in freezing cold water than go to” jail. In addition, she

testified that she “felt like [she] had no choice but go to Soddy Lake and do the baptism. [She]

didn’t want to go to jail.” At the same time, Riley said that she went along with the baptism

because she “really thought he was a God-fearing, church-like man who saw something, like, in

me, that God talked to him” and “it felt good to believe that for a minute.”

Wilkey told Riley to go into her ex-mother-in-law’s house to get towels for the baptism.

After Riley got the towels, Wilkey issued her a citation for possessing marijuana. Wilkey then

told Riley to follow him in her car. She proceeded to follow Wilkey to a boat launch about ten

minutes away. When asked whether Wilkey gave her the option not to follow him, Riley

responded, “[I]t wasn’t by gunpoint . . . or anything,” and “I’m a grown woman and I know I didn’t

have to do it.” Wikey then baptized Riley, as described above.

After exiting the lake, Wilkey and Riley briefly hugged. When asked why she hugged

Wilkey, Riley said that she “was just trying to get the heck out of there.” Riley also testified that

Goforth smirked at her and that it became apparent that the baptism “had nothing to do with God”

or “with saving” her. Rather, “[i]t had something to do with power and control.” Riley testified

that she left immediately after hugging Wilkey, though a dashcam video indicates that she stayed

for a few minutes. From Goforth’s view, “Upon emerging from the lake after the baptism, [Riley]

hugged Daniel Wilkey. We then walked up the ramp to the cars where I heard her laughing and

talking with Wilkey. She also said thank you to him.” Riley departed, while Goforth and Wilkey

continued talking.

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No. 22-5409, White v. Goforth

Riley sued Hamilton County, Wilkey, and Goforth in state court, raising numerous federal

and state-law claims. The defendants removed the case to federal court. Goforth moved for

summary judgment on all the claims against him. The district court granted the motion in part and

denied it in part. Pertinent to this appeal, the court denied qualified immunity to Goforth on Riley’s

§ 1983 claims for violating her First and Fourth Amendment rights. The claims against Wilkey

and the County remain pending.

II.

We review the district court’s summary judgment decision and its denial of qualified

immunity de novo. Franklin Am. Mortg. Co. v. Univ. Nat’l Bank of Lawrence, 910 F.3d 270, 275

(6th Cir. 2018); Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001). Summary judgment is

appropriate when, drawing all inferences in favor of the nonmovant, there is “no genuine issue as

to any material fact and the movant is entitled to judgment as a matter of law.” Franklin Am.

Mortg., 910 F.3d at 275 (citations omitted). “[A] defendant challenging the denial of summary

judgment on qualified immunity grounds must be willing to concede the most favorable view of

the facts to the plaintiff for purposes of the appeal.” Hopper v. Plummer, 887 F.3d 744, 757 (6th

Cir. 2018) (citation omitted).

“[Q]ualified immunity prevents government officials from being held liable if (1) the

officers did not violate any constitutional guarantees or (2) the guarantee, even if violated, was not

‘clearly established’ at the time of the alleged misconduct.” Arrington-Bey v. City of Bedford

Heights, 858 F.3d 988, 992 (6th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

The court must grant qualified immunity if either prong is satisfied. Pearson, 555 U.S. at 241–42.

An officer has not “violated a clearly established right unless the right’s contours were sufficiently

definite that any reasonable official in the defendant’s shoes would have understood that he was

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No. 22-5409, White v. Goforth

violating it.’” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Plumhoff v. Rickard, 572

U.S. 765, 778–79 (2014)). Once a defendant asserts qualified immunity, the “plaintiff bears the

burden of showing that the defendants are not entitled to” it. Johnson v. Moseley, 790 F.3d 649,

653 (6th Cir. 2015).

Riley does not contend that Goforth personally violated her constitutional rights. Instead,

she seeks to hold Goforth liable for failing to intervene in two alleged constitutional violations

committed by Wilkey—an unlawful seizure in violation of the Fourth Amendment and a coerced

baptism in violation of the First Amendment’s Establishment Clause. Successful failure-to-

intervene claims are rare and largely limited to one context—the use of excessive force. In that

context, “a police officer who fails to act to prevent the use of excessive force may be held liable

when (1) the officer observed or had reason to know that excessive force would be or was being

used, and (2) the officer had both the opportunity and the means to prevent the harm from

occurring.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). The Supreme Court has not

extended failure-to-intervene liability beyond those borders.3 At the time of the incident, our court

had found officers liable for failing to intervene in an unlawful arrest in one published case.4 See

Bunkley v. City of Detroit, 902 F.3d 552, 566 (6th Cir. 2018); see also Jacobs v. Village of Ottawa

Hills, 5 F. App’x 390, 395 (6th Cir. 2001). And we know of no case from this or any other circuit

that has held an officer liable for failing to intervene in an Establishment Clause violation. From

3
The Supreme Court has not yet made clear whether any precedent other than its own can clearly
establish law for § 1983 purposes. See Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021).
4
We note that in Bunkley, our court quoted a district court opinion for the proposition that “the
Sixth Circuit ha[d]” previously recognized that “failure to intervene extends beyond the excessive
force context.” Bunkley, 902 F.3d at 565 (quoting Holloran v. Duncan, 92 F. Supp. 3d 774, 794–
95 (W.D. Tenn. 2015)). But the case the district court cited for that proposition, Smith v. Ross,
482 F.2d 33 (6th Cir. 1973), is not a failure to intervene case at all.
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No. 22-5409, White v. Goforth

the start, then, Riley’s claims against Goforth are on shaky ground because, for a right to be clearly

established, the “legal principle must have a sufficiently clear foundation in then-existing

precedent.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). And the plaintiff usually

must produce a case illustrating that legal principle at work in a closely analogous factual setting,

so that every reasonable officer would have fair warning that his conduct was unlawful. See

Arrington-Bey, 858 F.3d at 992–93. Riley’s claims fail because she cannot do so.

Fourth Amendment. Take first Riley’s claim that Goforth failed to intervene in Wilkey’s

unlawful seizure of her. Goforth would be liable for failure to intervene only if he (1) “observe[d]

or ha[d] reason to know that” Riley was being unlawfully seized and (2) “had a realistic

opportunity to intervene to prevent the harm from occurring.” Bunkley, 902 F.3d at 565–66

(citation omitted). The critical question in this case is what Goforth had reason to know.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

A “seizure” requires either “‘physical force’ or a ‘show of authority’ that ‘in some way restrain[s]

the liberty’ of the person.” Torres v. Madrid, 141 S. Ct. 989, 995 (2021) (quoting Terry v. Ohio,

392 U.S. 1, 19 n.16 (1968)). Whether a person has been “seized” by a “show of authority,” as

Riley alleges here, depends on “whether the officer’s words and actions would have conveyed

. . . to a reasonable person” that she was “being ordered to restrict [her] movement.” California v.

Hodari D., 499 U.S. 621, 628 (1991). “Examples of circumstances that might indicate a seizure”

by show of authority “would be the threatening presence of several officers, the display of a

weapon by an officer, . . . or the use of language or tone of voice indicating that compliance with

the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).

Our question, though, is not whether a reasonable person in Riley’s shoes would have thought she

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was not free to leave. Our question is whether Goforth should have known—or more accurately,

whether every reasonable officer in Goforth’s shoes should have known—that a reasonable person

in Riley’s shoes would have felt that she had been seized. On the facts available to Goforth during

this incident, we answer that question, “no.” See Kisela, 138 S. Ct. at 1153.

As a predicate to determining Goforth’s liability, the district court determined that Wilkey

had unlawfully seized Riley for the purposes of the baptism. The court relied on several facts.

First, Riley denied that she had consented to the baptism. Riley v. Hamilton Cnty. Gov’t, 2022 WL

1051784, at *6 (E.D. Tenn. Apr. 7, 2022). Second, “Riley had already been pulled over,

handcuffed, and detained for nearly two hours by an on-duty, uniformed officer driving a marked

police vehicle.” Id. Third, “[s]he had surrendered marijuana she knew she was not legally allowed

to have.” Id. Fourth, Riley agreed to the baptism in part because Wilkey had told her that if she

agreed, he would give her a citation only and she could avoid jail. Id. And fifth, “Wilkey had also

called and requested the presence of an additional on-duty officer for the baptism.” Id. Of these,

Goforth knew only one—that he was the officer called to the scene.

The district court also identified two additional facts supporting the conclusion that Goforth

had reason to know that Wilkey had seized Riley. First, Goforth learned, just before the baptism,

that Wilkey had issued Riley a citation. Id. at *8. Second, “[s]ome of the language Wilkey used

after Goforth arrived could also have put Goforth on notice that Riley was seized.” Id.

Specifically, the court highlighted Wilkey telling Riley, “You please keep your clothes on,” and

Wilkey telling Goforth to “watch [Wilkey’s] back” while he undressed. Id. Given the

interlocutory posture of this appeal, we must take these facts as true and as support for Riley’s

position. See Plumhoff, 572 U.S. at 772–73. But the district court did not discuss the rest of the

record, and that lies entirely in Goforth’s favor.

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Goforth was not privy to the conversations between Wilkey and Riley that led to the

baptism, and he had no knowledge of Wilkey’s quid pro quo. When Goforth arrived, he saw that

Riley had driven her own car to the boat launch. Riley had parked behind Wilkey’s car, meaning

that Wilkey’s car, not Riley’s, was blocked in. Goforth observed that Riley was standing outside

of the car and was not handcuffed or secured. He saw Riley and Wilkey laughing and talking in a

friendly manner. He saw Wilkey unholster his weapon and remove his uniform. He then observed

Riley enter and exit the lake on her own accord, hug Wilkey, and continue chatting with him in a

friendly manner after the baptism.

Goforth’s involvement with Wilkey and Riley was limited both in duration and in terms of

what he knew. He knew what minimal information Wilkey had conveyed, and everything Goforth

personally observed largely indicated that Riley was at the boat launch of her own volition and

free to leave at any point. Based on these facts, we could surely say that every reasonable officer

should have known that this situation was highly unorthodox. But that is not the question before

us. The Fourth Amendment question asks whether Riley was being held against her will; the duty-

to-intervene question asks, among other things, whether Goforth should have known it; and the

qualified-immunity question asks whether every reasonable officer in Goforth’s position would

have understood that he had a duty to intervene. Given what Goforth knew at the time, we cannot

say that every reasonable officer in Goforth’s situation would have known that Riley was not a

willing participant, free to leave when she wished, but had instead been unlawfully seized. And

without knowledge of the underlying constitutional violation, Goforth cannot be liable for failing

to stop it. See Turner, 119 F.3d at 429.

Our circuit caselaw doesn’t help Riley. She offers Bunkley v. City of Detroit to show that

the duty to intervene in an unlawful arrest is clearly established in our court. To be sure, the court

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in Bunkley held that “[t]he duty of law enforcement officers to intervene to prevent an arrest not

supported by probable cause was stated in precedent ‘clear enough that every reasonable official

would interpret it to establish’ this rule.” 902 F.3d at 566 (quoting Wesby, 138 S. Ct. at 590). But

general legal principles “do not suffice on their own. ‘[C]learly established law’ may not be

defined at such ‘a high level of generality.’” Arrington-Bey, 858 F.3d at 992 (quoting Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011)). Instead, a plaintiff must nearly always “identify a case with

a similar fact pattern that would have given ‘fair and clear warning to officers’ about what the law

requires.” Id. at 993 (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). Bunkley’s facts aren’t

remotely similar to these.

In Bunkley, the plaintiff sued several police officers for false arrest and failure to intervene.

902 F.3d at 555. The district court denied qualified immunity on the failure-to-intervene claim,

and this court affirmed. Id. Qualified immunity wasn’t appropriate, the court said, where the

officers had arrested the plaintiff for murder despite knowing that (1) they had not investigated the

shooting, (2) the plaintiff didn’t match the descriptions given by the victim of the shooting, (3) they

hadn’t questioned the plaintiff; and (4) they made up a false reason for arresting the plaintiff. Id.

at 566. Bunkley’s facts are far removed from the facts of this case and can’t support a clearly

established finding. See Arrington-Bey, 858 F.3d at 993. So “existing law [hadn’t] placed the

constitutionality of [Goforth’s] conduct ‘beyond debate.’” Wesby, 138 S. Ct. at 589 (quoting al-

Kidd, 563 U.S. at 741).

Riley also offers Jacobs v. Village of Ottawa Hills, 5 F. App’x 390, 395 (6th Cir. 2001).

But “a plaintiff cannot point to unpublished decisions to meet [the] burden” of showing that a right

was clearly established. Bell v. City of Southfield, 37 F.4th 362, 367 (6th Cir. 2022). And, in any

event, Jacobs hurts Riley more than it helps. In Jacobs, an officer wasn’t liable for failing to

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No. 22-5409, White v. Goforth

intervene in an unlawful arrest because he “arrived after [another officer] had begun the seizure

and did not observe or have to reason to know” the unconstitutional basis for the seizure. 5 F.

App’x at 395. The same is true here; Goforth arrived near the end of the encounter and lacked key

facts to know that Wilkey had unlawfully seized Riley.

Riley has not shown that Goforth violated her clearly established Fourth Amendment

rights, so Goforth is entitled to qualified immunity on this claim.

First Amendment. Riley’s Establishment Clause claim fares no better. The Constitution

provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const.

amend. I. The Supreme Court “has instructed that the Establishment Clause must be interpreted

by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist., 142

S. Ct. 2407, 2428 (2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That

may well be so. Coercion “was among the foremost hallmarks of religious establishments the

framers sought to prohibit when they adopted the First Amendment.” Id. at 2429. Accordingly,

“government may not coerce anyone to attend church, nor may it force citizens to engage in a

formal religious exercise.” Id. (citation omitted). Threatening jail time for refusing Christian

baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional

rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that

Goforth knew of Wilkey’s quid pro quo, and Riley doesn’t argue that he did.5 Absent that

5
In its opinion, the district court said, without explanation, “There are genuine disputes of material
fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher
penalties had she refused to be baptized, and whether Goforth should have known that Riley was
being coerced.” Riley, 2022 WL 1051784, at *11 (emphasis added). But there is no record support
for the assertion that Goforth might have known of Wilkey’s quid pro quo and Riley does not argue
that there is. Reading this statement as a reference to the quid pro quo would also contradict
another portion of the opinion. With respect to the First Amendment claim, the court dispensed
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knowledge, Goforth could not have violated Riley’s clearly established First Amendment rights.

So “[o]n this record, [Goforth] plainly did not violate any clearly established law.” City of

Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (per curiam).

The district court thought that, even absent coercion, it was clearly established that an

officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer”

would have perceived a governmental endorsement of religion, as defined by the Lemon test and

its progeny. Riley, 2022 WL 1051784, at *11; see also Lemon v. Kurtzman, 403 U.S. 602, 612–

13 (1971). And, although finding “no cases directly addressing the circumstances Goforth faced,”

the district court thought that no case was necessary. Riley, 2022 WL 1051784, at *12. Instead,

“based on the state of the law at the time, Goforth had fair warning that he had a duty to stop”

Wilkey’s violation of the “reasonable observer” test. Id.; see Wesby, 138 S. Ct. at 590 (noting that

“there can be the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently

clear even though existing precedent does not address similar circumstances”). We cannot agree.

First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its

endorsement test offshoot.” Kennedy, 142 S. Ct. at 2427. If that is so, then Goforth could not

have had a clearly established duty to stop Wilkey from violating it. And even in its heyday, the

boundaries of Lemon’s “abstract . . . approach to the Establishment Clause” were far from clear.

Id. The approach “‘invited chaos’ in lower courts, led to ‘differing results’ in materially identical

with Goforth’s argument that he lacked knowledge of the coercion by concluding that “the absence
of coercion does not end the inquiry.” Id. (citation omitted). Accordingly, we read the district
court’s statement as referencing its earlier conclusion that genuine disputes remained regarding
whether Goforth had reason to know that Riley had been seized, or detained against her will, for
the purposes of a baptism. But, as explained above, it was not clearly established, on the facts
available to Goforth, that he should have known of the seizure or that he had a duty to intervene.
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No. 22-5409, White v. Goforth

cases, and created a ‘minefield’ for legislators.’” Id. (citation omitted). A doctrine like that is

unlikely to produce the “obvious case.” See Wesby, 138 S. Ct. at 590.

Moreover, we can find no case that had ever found an officer liable where his fault was not

his own endorsement of religion, but his failure to intervene in someone else’s. See Rojas v. City

of Ocala, 315 F. Supp. 3d 1256, 1287 (M.D. Fl. 2018), vacated on other grounds, 40 F.4th 1347

(11th Cir. 2022) (granting qualified immunity because of “the lack of authority that would warn

the [defendant] that he could be liable for failing to intervene to prevent” an Establishment Clause

violation). Absent any such case, we struggle to see how the contours of any duty to intervene

could be “so well defined” that it would have been “clear” to Goforth “that his conduct was

unlawful in the situation he confronted.” Wesby, 138 S. Ct. at 590 (citation omitted).

Whatever one might say about Wilkey’s conduct, his case is not before us. And we must

assess Goforth’s liability individually. Given that there is no evidence in the record that Goforth

knew of any coercion, Goforth’s liability is not “obvious.” See White, 580 U.S. at 81 (concluding

that a case that “presents a unique set of facts and circumstances” is not an “obvious” case). He is

entitled to qualified immunity on the First Amendment claim.

***

We REVERSE the district court’s denial of qualified immunity to Goforth.

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 Case: 22-5409 Document: 41-3 Filed: 05/18/2023 Page: 1 (15 of 15)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-5409

BAILEY WHITE, as Administrator of the Estate of Shandle

Marie Riley, deceased,
Plaintiff - Appellee,
FILED
May 18, 2023
v. DEBORAH S. HUNT, Clerk

HAMILTON COUNTY GOVERNMENT, et al.,

Defendants,

JACOB GOFORTH, in his individual and official capacity as

a Deputy Sheriff of Hamilton County Government,
Defendant - Appellant.

Before: McKEAGUE, THAPAR, and LARSEN, Circuit Judges.

JUDGMENT
On Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is

REVERSED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk